The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1887-05-03
~Tbe Lerislatiye and judicial are

II
coordinate departments Of the Gov
eminent of equal dignity; each is
alike supreme in the exercise of its
proper functions, and cannot directly
| or indirectly, while acting within the
limits of authority, be subjected to
the control or supervision OF the
/ other. without an unwarrantable as
sumption by that other of the power
which, by the Constitution, Is not
conferred upon it. The Constitution
apportions the powers of government,
/ but it does not make any one OF the
three departments subordinate to
another, when exercising the trust
committed TO it. The Courts may
declare legislative enactments uncon
stitutional and void in some cases,
but not because the Judicial power Is
superior in degree or dignity to the
legislative. Being required to declare
what the law Is in the cases which
come before them, they must enforce
the Constitution as the paramount
law. whenever a Legislative enactment
comes in conflict with it.
But the Courts sit, not to review
or revise the Legislative action, but TO
enforce the Legislative will: and 1t Is
only when they find that the legisla-
ture has failed to keep within its con-
stitutional limits, that they are at
liberty to disregard its action"
The power TO declare law uncon-
stitutional IS expressly given to the
Supreme Court by Section S24 OF the
Civil Code.
Article rs of the Constitution pre-
scribes that all laws heretofore en-
acted or that may hereafter be enacted,
which are contrary to this Consttu-
ton shall be null and void.
Article SO of the Constitution pre-
seribes that the decisions of the
Supreme Court when made by ma
jority of the Justices thereof, shall be
final and conclusive upon all parties.
But, considering the solemn and re-
sponsible nature of the function thus
devolved upon the SupremesCourt, we
adopt the principle which prevails in
other Courts, that the Court Will not
pass upon a constitutional question
and declare q statute to be invalid
unless Adhesion upon that very point
becomes necessary TO the determine
ton of the cause.
In any case where q constitutional
question is raised, though 1t may be
legitimately presented by the record,
vet if the record also presents some
other and clear ground upon which
the Court may rest Its judgment, and
thereby render the constitutional ques
ton immaterial to the case, the Court
viii take that course and leave the
question Of constitutional power to be
passed upon when case arises which
cannot be otherwise disposed Of and
which consequently renders q deci-
sion upon such question necessary
Cooley COnst. Lin. p. 163.
Frees vs.. Ford 6 \. y, III
White vs.. Scott. 1 Barb, Sc
The Court having on the second
point Of the appeal found that the de-
PENDANT in this case cannot be pun
ished by any law now in force for the
otfense Of which he IS charged wit,
the possession of opium-the question
whether this law Is in conflict with
the Constitution becomes immaterial.
And it is not proper for Us TO listen
to an objection to the constitutionality
of an Act by party whose rights it
does not affect See Cooley, p. 163.
The defendant is charged with a
specific offense under a law which we
have held imperative against him.
He cannot upon this appeal raise the
unconstitGtionality Of the law in favor
of persons not before this Court.
To illustrate it further. The Court
would only be authorized to consider
the unconstitutionality of the Act of
1886, on the ground of Its title not in
Guiding preparations Of opium "
when the objection IS made by one
who IS charged with the ofense of
having unlawful possession of 8 prepa
rGttonS of opium"
This principle was adopted by this
Court in the case of The King vs.. Vat
Sing, Haw., 672, and we follow it.
Whenever a person charged with
importing or selling opium contrary
to the Act, or for violating the regula-
tons said to have been made there
under, or for importing or selling
preparations of opium, shall raise the
question of the constitutionality of
the Act and the decision of this ques-
ton IS necessary, as being the very
Us nl0tq. this Court Will consider it and
viii not be at liberty te decline so to
do.
The result is that the judgment of
the lower Court must be reversed and
the defendant discharged.
F. n. HITCH and 2. NEUMASN for
the Crown. J. T. DARE for defendant.